Words are important and so a few words on words:
Legal Custody – Legal Custody is a legal term describing the parents ability to make decisions regarding the health and welfare of their child. This label covers such things as decisions about education, what religious traditions that the child participates in, what decisions are made about medical care, and who the child can associate with. A typical agreement or court order for that matter will hold that the parents have joint legal custody.
Joint legal custody is a legal status where holding that both parents separately have the ability to make each of these decisions for the child. One parent can bring the child, for example, to a Christian church and the other parent can bring the child to a Jewish temple. Each parent can decide to have the child’s tonsils removed, and each parent could enroll the child in entirely separate schools.
Of course the disconnect is that even though you have the power, such unilateral decisions are, of course, an extremely bad idea. Although the California statutes do not require consent of the other parent, good practice and appropriate parenting does require at least notice, a discussion, and ideally agreement.
Sole legal custody is typically reserved for the most egregious of situations where one parent has a drug or (significant) alcohol problem, is in prison, or the parents are simply unable to agree on what steps to take for the child’s benefit. In the latter circumstance, often one parent is given legal custody over non-emergency medical decisions and one is given legal authority over schooling. In the worst situations, even religious practice is respected and reserved to each parent.
Physical Custody – This is an amorphous term that has some legal meaning in the context of certain situations, but for the most part is reserved for the parent who has the majority of the time with the child. In these circumstances, we use the term “primary physical custody” instead of “sole physical custody”. Why, because these words matter more to the parents than to the law. This term really only has meaning to schools when deciding which district the child is able to attend without special application for transfer. Beyond this, it is simply a word that probably causes more problems than it solves.
Some attorneys will say that have primary physical custody means you can decide where the child lives, but in 11 years of practice, I have never heard any decision maker even consider this label in deciding a move away.
If you have the minority of time with the children, you can expect that the other parent will be given the label of primary parent and you should lose no sleep over the issue. If you are the primary parent, you should not think that this gives you any special magical powers or status; it is simply a word.
However, because words are important, there are times when a parent can’t quite get over this word and needs the label of “joint physical custody”. In those cases, we can apply the joint physical custody label and move on to more important things, like the time the child spends with each parent.
Sole physical custody is again reserved for those extreme situations, which I will not even bother to go into here.
Often times the concern over this word is grounded in a desire to move away or a fear that the other party will want to move out of state in the future. There appears to be a belief that if someone has primary physical custody they will be able to move away with the child to another area, but in reality the courts are more intelligent than that and it really comes down to a multiple of factors, the most important of which is the time that each parent spends with the child and not some quasi-legal term whose true meaning has been lost.
Visitation/Custodial time – There has been a move for some time to use the term “custodial time” or “time with the non-custodial parent” instead of visitation. Again words seem to matter, and visitation implies something cold and distant. The new language tries to suggest the concept that our modern society is endorsing, which is that raising a child is a joint effort and to a large extent, it is not the parents right to be with the child, but rather the child’s right to be with the parent. Although there is really no legal basis for this switch in rights, it is an oft quoted phrase that judges like to throw around in their discussions. I like to think that it simply puts things in perspective for parents who are scared confused and uncertain of what the future holds.